FLORIDA LAW WEEKLY

VOLUME 42, NUMBER 30

CASES FROM THE WEEK OF JULY 28, 2017

FOURTH DISTRICT REVERSES BIG VERDICT AND DIRECTS NEGLIGENCE IN FAVOR OF DEFENDANT.

The Las Olas Holding Company v. Demella, 42 Fla. L. Weekly D1605 (Fla. 4th DCA July 19, 2017):

A woman with a blood alcohol content three times the legal limit approached a curve in the road near a hotel, failed to turn her steering wheel or remove her foot from the gas, and accelerated straight into the hotel’s cabana fifteen feet from the road. The force of the impact collapsed the walls of the structure, killing a pregnant woman and injuring her husband. The jury ultimately found both the driver and the hotel responsible for damages to the tune of $24 million. The jury apportioned 85% of the negligence to the driver and 15% to the hotel.

The evidence of the hotel’s negligence came in the form of several aerial photographs showing that as the road near that hotel curved, vehicles must travel straight toward the cabana before turning right. The plaintiff argued that the physical layout of the road created a foreseeable zone of risk encompassing a driver veering off the road and into the cabana. Plaintiff introduced expert testimony stating that if the hotel had placed more palm trees in front of the cabana the deadly incident may not have occurred.

There was also evidence that the hotel’s general manager had told the city commission before the accident that the street which the hotel resided was like a race track. Plaintiff presented testimony of several employees who also stated that the hotel knew about the speeding on the road and had received multiple reports concerning the speeding and dangers.

The hotel moved for a directed verdict. It argued that the plaintiff failed to sustain his burden to demonstrate reasonable foreseeability that an accident of this nature would take place. The hotel noted the cabana complied with all building codes and zoning regulations, and while conceding that the plaintiff’s evidence showed there was speeding on the road, the hotel argued that speeding posed a foreseeable threat only to invitees crossing the road, and not to individuals in the cabana. The hotel showed that in 49 years of the road’s existence there had never been an off-road accident.

The Fourth District reversed the trial judge’s denial of the motion for directed verdict. It agreed that the evidence of speeding on the road did not establish a duty that the placement of the particular cabana fifteen feet from the road would constitute a dangerous condition about which the hotel “knew or should have known.” The court observed that some accidents are too unusual or extraordinary to be reasonably foreseeable, and counted this one as one of those.

The court additionally noted that even if the hotel knew of a dangerous condition it did not breach any duty, because the hotel had protected the cabana with a curb, a palm tree and various hedges. The court said in hindsight it is always easy to recognize exactly what precautions “could have been taken,” but that was not fair in this case.

Finally, as to causation, the court found that because the driver here was intoxicated to more than three times the legal limit and made no attempt to brake or turn away, that the actions of the driver were also a supervening intervening cause, relieving the hotel of any liability.

The court then addressed statements made by plaintiff’s counsel during closing, not because they had any bearing on the directed verdict issue, but an admonition to litigants. Plaintiff’s counsel had stated that the reason why they were in the courthouse was that a corporation had “refused to accept any responsibility for its role in the death of the plaintiff.” After the trial court correctly sustained objections to that statement, the plaintiff’s lawyer double-downed, stating that the defendant will look at everyone else’s conduct but its own, in its attempt to avoid responsibility.

The court reminded us that it is improper for an attorney to disparage an opposing party’s defense of a case or to suggest that a party should be punished for contesting a claim. There is also no excuse to make “value of human life” comments in closing which are clearly improper.

The court stated with regret that unfortunately, through no fault of their own, the plaintiff and his wife were at the wrong place at the wrong time, but noted that that did not mean that the hotel was at fault, or even that it owed a duty of care to invitees within its walls to take action in this instance.

DEPARTURE FROM ESSENTIAL REQUIREMENTS OF LAW FOR COURT TO DENY PERSONAL REPRESENTATIVE’S MOTION TO CONSOLIDATE TWO WRONGFUL DEATH CASES BASED ON SUCCESSIVE INJURY-PRODUCING INCIDENTS INVOLVING THE DECEDENT, WHEN THE DENIAL COULD CAUSE APPARENT INCONSISTENT VERDICTS RESULTING IN MATERIAL INJURY.

Tracey v. Swanholm Central, 42 Fla. L. Weekly D1622 (Fla. 2nd DCA July 19, 2017):

The plaintiff’s first lawsuit alleged that his wife had sustained significant injuries when a malfunctioning automatic sliding door at Walgreen’s hit her and knocked her to the ground. The complaint alleged that as a result of the injury, she died a month later.

The second case alleged that while she was recuperating at a senior living community from those injuries, she sustained aggravated injuries as a result of inadequate care including another fall three days before her death.

The plaintiff moved to consolidate the two actions based on rule 1.270(a). He argued that consolidation would prevent the substantial risk of inconsistent verdicts. The trial court denied the motion, basing its ruling on a case which involved different causes of action based on dissimilar theories and featuring different measures of damages. In this case, the plaintiff’s complaint alleged that the fall and the care at the nursing home aggravated his wife’s preexisting injury that occurred at the Walgreen’s store. The complainants in both cases alleged that the injuries the decedent suffered were sustained as a result of the defendant’s negligence resulting in her death.

If there were two separate trials on that case, the jury in the Walgreen’s trial could find that the woman’s death resulted from the second fall, infection, dehydration, malnutrition, and the jury in the nursing home case could find that her death was a result of a fall and the resulting injuries from the Walgreen’s fall. Thus, the denial of the motion for consolidation was erroneous, and against the essential requirements of law.

TRIAL COURT MUST MAKE FINDING CONCERNING THE REASONABLENESS OF AN HOURLY RATE AND TOTAL HOURS EXPENDED BEFORE AWARDING ATTORNEY’S FEES.

Clancy v. Smith, 42 Fla. L. Weekly D1635 (Fla. 1st DCA July 24, 2017).